No Sympathy – Claims of Injured Passenger in Go Kart Barred by Assumption of Risk; No Product Defect (NY)


Garnett v. Strike Holdings, LLC (New York)

The plaintiff rode as a passenger in a two-seat go kart driven by her then boyfriend.  While driving on the track, they were allegedly bumped twice by other go karts, allegedly causing the plaintiff to suffer injuries, including “reflex sympathy dystrophy.”  Plaintiff sued the operators of the indoor recreational facility, alleging negligent and defective design, strict products liability, failure to warn, and breach of warranty.

The defendants filed a motion to strike the products liability claim.  However, the trial court denied the motion finding (1) that [the operators] leasing and rental of the go-karts could support the inference that [the operators] had placed the go-karts within the distributive chain,” and (2) the operators’ “waiver form purporting to contain an “express assumption of risk, waiver indemnity and agreement not to sue” was void as against public policy and unenforceable by reason of” New York General Obligations Law Section 5-326.  The parties proceeded with discovery.

The defendants then filed a motion for summary judgment, arguing that “as a mere licensee of the go-karts, it did not manufacture, sell, design, produce or distribute the go-karts and could not be held liable in strict products liability, breach of warranty, or defective design.”  Defendants also argued that there was no evidence of any design defect.  Further, defendants contended that “plaintiff assumed the risk of a voluntary recreational activity by participating in the go-kart race, and that she failed to show that [the operator] was negligent or breached any duty it owed her.”  The trial court denied the motion and the defendants appealed.

On appeal, the Appellate Division of the Supreme Court reversed the decision.  The Court explained that “[t]he activity in which plaintiff engaged [was] a type to which the assumption of risk doctrine [was] appropriately applied.”  The plaintiff had assumed the risks inherent in the activity of riding a go kart, which included the risk that the go kart would “bump into objects” and that “vehicles racing around the track may intentionally or unintentionally collide with or bump into other go-karts.”  Thus, the defendants had owed no duty to protect the plaintiff from those risks.  This was true “even if plaintiff herself failed to recognize the risk.”

Plaintiff asserted that the defendants “had a duty to inform her of the unforeseen risk to her arising from the fact that the passenger seat of the two-seater go-kart was intended for a child, not an adult, and that the child-sized dimensions of the passenger seat contributed to her injury.”  However, the Court disagreed, holding that plaintiff’s evidence were insufficient to support such a claim.

Relying on testimony from her expert’s, plaintiff further contended that “the go-kart was defective due to the presence of an unpadded metal hump on the floor over the front axle,” and that the condition “prevents an adult passenger from extending her feet into the footwell, instead forcing the feet to be wedged against the metal hump, which leaves the legs unable to absorb any shock in the event of a collision.”  Plaintiff’s expert claimed that the conditions were a violation of the ASTM standard regarding “design of Seats” and “Passenger Clearances.”  However, the Court noted that the expert failed to establish that the ASTM standards cited were applicable to the design attribute plaintiff complained about.  Moreover, plaintiff’s expert did not controvert the assertion in the manufacturer’s information that the go kart “conform[ed] to the newly adopted ASTM F 24.60 guidelines adopted by most states.”  Thus, the Court held that nothing submitted by plaintiff showed that the go kart was defective.

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